Whats happening with substantive motions?
Oberman: The instinct of most arbitrators is to deny substantive motions unless the parties agree no material facts are in dispute. In part, this reflects a recognition that parties sometimes opt for arbitration to escape costly motion practice. But arbitrators also know that an arbitration award might be challenged if a party did not have a fair opportunity to present its proof. The general unavailability of substantive motions together with the discovery concerns just discussed cause some companies to decline to agree to arbitrate. Still, there are some signs that successful dispositive motions might become more common in commercial cases. The rules of some providers, like JAMS, provide for dispositive motions (although FINRA rules restrict motions). The NYSBA report links the granting of dispositive motions with curtailing unnecessary discovery expenses where there is a clear defense as a matter of law. And courts have confirmed awards rendered on a dispositive motion where the part
